B-127010, MAY 22, 1956, 35 COMP. GEN. 664

B-127010, MAY 22, 1956, 35 COMP. GEN. 664

GRATUITIES - REENLISTMENT BONUS - COMMISSIONED OR WARRANT OFFICER DUTY SHORTLY AFTER REENLISTMENT WHETHER ENLISTED MEMBERS OF THE UNIFORMED SERVICES WHO, AT THE TIME OF REENLISTMENT KNOW OR HAVE REASON TO BELIEVE THAT SHORTLY THEREAFTER THEY MAY BE CALLED TO ACTIVE DUTY AS COMMISSIONED OR WARRANT OFFICERS, ARE REQUIRED TO COMPLETE THEIR ENLISTMENT OR ARE CALLED TO ACTIVE DUTY AS OFFICERS ARE MATTERS IN THE CONTROL AND FOR THE CONVENIENCE OF THE GOVERNMENT AND DO NOT PRECLUDE THE PAYMENT OR REQUIRE A REFUND OF THE REENLISTMENT BONUS PROVIDED IN SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949.

TO THE SECRETARY OF DEFENSE, MAY 22, 1956:

REFERENCE IS MADE TO LETTER OF FEBRUARY 13, 1956, FROM THE ASSISTANT SECRETARY OF DEFENSE ( COMPTROLLER) REQUESTING A DECISION AS TO WHETHER PAYMENT OF A REENLISTMENT BONUS IS AUTHORIZED (1) IF A MEMBER OF THE UNIFORMED SERVICES OTHERWISE ENTITLED TO RECEIVE IT KNOWS OR HAS REASON TO BELIEVE THAT HE MAY BE CALLED TO ACTIVE DUTY AS A COMMISSIONED OR WARRANT OFFICER SHORTLY AFTER REENLISTMENT, OR (2) IF A MEMBER PRIOR TO DISCHARGE FILES AN APPLICATION FOR A COMMISSION OR WARRANT AND REENLISTS PRIOR TO RECEIPT OF THE APPOINTMENT AS A COMMISSIONED OR WARRANT OFFICER AND THEREAFTER IS CALLED TO ACTIVE DUTY UNDER SUCH APPOINTMENT.

COMMITTEE ACTION NO. 136 OF THE PAY AND ALLOWANCE COMMITTEE, DEPARTMENT OF DEFENSE, ENCLOSED WITH LETTER, STATES THAT THE FOLLOWING EXAMPLE IS TYPICAL OF THE CIRCUMSTANCES WHICH GIVE RISE TO THE FIRST QUESTION:

PRIOR TO BEING DISCHARGED FROM HIS FIRST ENLISTMENT ON 3 JANUARY 1955 A MEMBER APPLIED FOR A RESERVE COMMISSION WITH CONCURRENT ACTIVE DUTY. AFTER DISCHARGE HE WAS TENDERED AN APPOINTMENT AND ACCEPTED A COMMISSION AS A SECOND LIEUTENANT ON 18 JANUARY 1955. ON OR ABOUT 22 JANUARY 1955 THE INDIVIDUAL RECEIVED NOTIFICATION THAT, IF HE DESIRED, HE WOULD BE CALLED TO ACTIVE DUTY ON OR ABOUT 7 MARCH 1955. HE REENLISTED ON 4 FEBRUARY 1955 FOR THE MINIMUM NUMBER OF YEARS AUTHORIZED AT THE TIME OF REENLISTMENT IN THE SAME SERVICE FROM WHICH DISCHARGED. ON 5 MARCH 1955 HE WAS DISCHARGED TO ENTER ON ACTIVE DUTY THE FOLLOWING DAY AS A COMMISSIONED OFFICER.

A SIMILAR SITUATION COULD ARISE WHERE THE MEMBER HELD A RESERVE COMMISSION OR WARRANT PRIOR TO DISCHARGE AND WAS ON NOTICE THAT HE WOULD BE CALLED TO ACTIVE DUTY IN SUCH STATUS SHORTLY AFTER THE TIME OR REENLISTMENT.

THE COMMITTEE ACTION STATES THAT SECTIONS 207 AND 208 OF THE CAREER COMPENSATION ACT OF 1949, AS AMENDED, 37 U.S.C. 238, 239, WHICH AUTHORIZE PAYMENT OF THE REENLISTMENT BONUS UNDER CERTAIN CONDITIONS, DO NOT SPECIFICALLY PROVIDE FOR CONSIDERATION, IN DETERMINING ENTITLEMENT, OF FACTORS WHICH MIGHT INDICATE THAT THE MEMBER WILL OR WILL NOT COMPLETE THE TERM FOR WHICH HE REENLISTS.

IN 25 COMP. GEN. 700, AN ENLISTED MAN APPLIED FOR RETIREMENT AND WAS GRANTED A 120-DAY ,RETIREMENT FURLOUGH," WHICH WAS CANCELED SO HE COULD REENLIST. UPON REENLISTMENT HE RESUBMITTED HIS APPLICATION FOR RETIREMENT TO BE EFFECTIVE UPON THE EXPIRATION OF HIS UNCOMPLETED RETIREMENT FURLOUGH. IN SUCH CIRCUMSTANCES IT APPEARED THAT AT THE TIME OF REENLISTMENT HE HAD NO INTENTION OF REPORTING FOR ACTIVE DUTY UNDER THE CONTRACT OF ENLISTMENT. WE VIEWED THE MERE COMPLIANCE WITH THE FORMALITY OF ENTERING INTO A CONTRACT OF ENLISTMENT WITHOUT THE INTENTION OF SERVING UNDER SUCH CONTRACT AS REPUGNANT TO THE EVIDENT LEGISLATIVE INTENT AND PURPOSE OF THE STATUTE, WHICH CONTEMPLATED THAT THE ENLISTMENT OR REENLISTMENT BE ENTERED INTO IN GOOD FAITH. HENCE WE HELD THAT THE ENLISTMENT ALLOWANCE AUTHORIZED BY THE APPLICABLE STATUTE PROPERLY COULD NOT BE PAID IN THAT CASE. ALSO, IN 27 COMP. DEC. 747, THE COMPTROLLER OF THE TREASURY HELD, IN A CASE WHERE ON THE DAY FOLLOWING HIS REENLISTMENT AN ENLISTED MAN WAS DISCHARGED TO ACCEPT AN APPOINTMENT AS A WARRANT OFFICER, THAT HE WAS NOT ENTITLED TO AN ENLISTMENT ALLOWANCE FOR THE REASON THAT THE REENLISTMENT WAS NOT ENTERED INTO IN GOOD FAITH WITH THE PURPOSE OF SERVING UNDER IT WITHIN THE MEANING OF THE APPLICABLE STATUTE, BUT RATHER TO QUALIFY FOR APPOINTMENT AS A WARRANT OFFICER.

THE REENLISTMENT BONUS ACCRUES, IF AT ALL, ON THE DATE OF REENLISTMENT. SEE 23 COMP. GEN. 914, 915. ON SUCH DATE THE ENLISTED MEMBER, IN THE EXAMPLE CITED, OBLIGATED HIMSELF TO SERVE FOR THE PERIOD OF HIS ENLISTMENT AND WHETHER HE WOULD BE REQUIRED TO COMPLETE HIS ENLISTMENT OR WOULD BE CALLED TO ACTIVE DUTY AS AN OFFICER WAS PRIMARILY A MATTER IN THE CONTROL OF THE GOVERNMENT, WHICH COULD REVOKE ANY ORDERS RESPECTING ACTIVE DUTY AS AN OFFICER ACTUALLY ISSUED PRIOR TO HIS REPORTING TO ACTIVE DUTY AS SUCH. IT DOES NOT APPEAR THAT THE REENLISTMENT WAS ENTERED INTO SOLELY TO MEET THE FORMAL REQUIREMENTS PRESCRIBED BY LAW TO QUALIFY FOR SOME BENEFIT WITHOUT THE INTENTION OF SERVING UNDER THE ENLISTMENT. IT WILL BE NOTED THAT IN THE NAVY A DISCHARGE FROM ENLISTED STATUS IS NOT REQUIRED WHERE CERTAIN ENLISTED MEMBERS ARE CALLED TO ACTIVE DUTY AS OFFICERS; UPON RELEASE FROM ACTIVE DUTY--- WHICH CAN BE EFFECTED AT ANY TIME AT THE CONVENIENCE OF THE GOVERNMENT--- THEY MAY BE REQUIRED TO SERVE OUT THE TERMS OF THEIR ENLISTMENTS. IN ALL OF THE SERVICES THE GOVERNMENT WOULD REQUIRE THE ENLISTED MEMBER TO SERVE OUT HIS ENLISTMENT BY NOT CALLING HIM TO ACTIVE DUTY AS AN OFFICER. A CALL TO ACTIVE DUTY AS AN OFFICER APPARENTLY IS REGARDED AS FOR THE CONVENIENCE OF THE GOVERNMENT, SINCE APPLICABLE REGULATIONS DO NOT REQUIRE A REFUND OF THE UNEARNED PORTION OF THE REENLISTMENT BONUS IN SUCH CASES.